State v. Dockery

821 P.2d 188, 169 Ariz. 527, 84 Ariz. Adv. Rep. 24, 1991 Ariz. App. LEXIS 77

• Court: Court of Appeals of Arizona
• Decided: April 9, 1991
• Docket: 1 CA-CR 89-1459
• Status: Published

Opinions

OPINION

KLEINSCHMIDT, Judge.

In this appeal, the defendant, Timothy Dockery, argues that the trial court abused its discretion in denying his motion to withdraw the guilty plea he entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The basis for the defendant’s request is that after entering his plea, but before sentencing, he discovered that he would probably die from acquired immune deficiency syndrome (AIDS) before his sentence was served. We hold that the trial court should have allowed the defendant to withdraw his plea.

The defendant was originally charged with theft, a class 3 felony, enhanced by an allegation of a prior felony conviction. Conviction on this charge would have exposed the defendant to a sentence of up to fifteen years imprisonment. Faced with this, but still denying his guilt, he agreed to plead guilty pursuant to North Carolina v. Alford in return for a stipulated sentence of 7.5 years imprisonment. After he entered his plea, but before sentencing, the defendant learned that he had tested positive for the presence of the antibody to human immunodeficiency virus (HIV), the etiologic agent for AIDS. The defendant was told that he has a life expectancy of between five and eight years. The state did not attempt to dispute this.

When the defendant found out that he was HIV positive, he moved to set aside his plea of guilty and to withdraw from the plea agreement. The trial court, although it accepted as fact that the defendant’s life expectancy was between five and eight years, denied this motion.

A trial court’s ruling on a motion to withdraw from a guilty plea will be reversed only upon a showing that the trial judge clearly abused his discretion. State v. City Court of City of Tucson, 131 Ariz. 236, 237, 640 P.2d 167, 168 (1981) (citing State v. Corvelo, 91 Ariz. 52, 54, 369 P.2d 903, 904 (1962)). The trial court’s duty is governed by Rule 17.5, Arizona Rules of Criminal Procedure, which provides that the court, in its discretion, may allow a withdrawal of a guilty plea when necessary to correct a “manifest injustice.” Rule 17.5 is to be liberally interpreted, and doubts are to be resolved in favor of allowing withdrawal of the plea. See City Court of City of Tucson, 131 Ariz. at 237, 640 P.2d at 168 (citing Corvelo, 91 Ariz. at 54, 369 P.2d at 904-05).

The state argues that, since the defendant received the stipulated sentence bargained for, no manifest injustice ensued. We do not find that argument persuasive.

There are two recent cases which bear on the issue. The first is Duran v. Superior Court, 162 Ariz. 206, 782 P.2d 324 (App.1989) , in which we held that it was an abuse of discretion not to allow a defendant to withdraw from an Alford plea when the defendant learned that one of the complaining witnesses had retracted her accusation. We noted that Alford pleas are disfavored, and we concluded that where, before sentencing, there is an objective reason for a defendant to reevaluate such a plea, he should be allowed to withdraw from it. Dockery had such an objective reason to reevaluate the plea. When he entered it, he was unaware that what he was agreeing to would cause him to spend the rest of his life in prison.

The second pertinent case is State v. Cooper, 166 Ariz. 126, 800 P.2d 992 (App.1990) , in which the defendant pled guilty in four separate plea agreements, was sentenced pursuant to the plea agreements, and then discovered that he was HIV positive. We held that this condition could constitute a newly-discovered material fact under Rule 32, Arizona Rules of Criminal Procedure, sufficient to allow the sentencing judge, as a matter of compassion, to reconsider the sentence imposed.

Other Arizona cases which have allowed the withdrawal of guilty pleas support our conclusion. For example, see State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962) (defendant mistakenly believed he was pleading guilty to a class of crime that would not affect his immigration status); State v. Chavez, 130 Ariz. 438, 636 P.2d 1220 (1981) (mistaken belief that sentence could be served in another state); State v. Stevens, 154 Ariz. 510, 744 P.2d 37 (App.1987) (the parties and trial court mistakenly believed that defendant was on parole at time of offense so as to allow for enhanced penalty).

We believe that the dissent misapprehends the thrust of Duran and the way in which we apply that case to these facts. We do not say that the fact that the defendant is HIV positive either rendered him incompetent to enter his plea or, assuming his guilt, somehow might make him less guilty of the crime with which he is charged. As Duran points out, the decision whether to enter an Alford plea requires the defendant to undertake a risk-benefit analysis. Duran, 162 Ariz. at 208, 782 P.2d at 326. When, before sentencing, the defendant discovers that his assumption that he will outlive the sentence he bargained for is incorrect, it is manifestly unjust not to allow him to withdraw from the bargain. In the phraseology of Duran, since the defendant had an objective reason to reevaluate his Alford plea, it was an abuse of discretion not to allow him to withdraw it.

It is ordered remanding this case to the trial court with directions to set aside the defendant’s plea of guilty and allow him to withdraw from his plea agreement.

LANKFORD, J., concurs.